Alito’s Indian adoption ruling is actually a backdoor assault on all racial preferences.

Eric Posner

Slate

June 26, 2013

Emily, you present Adoptive Couple v. Baby Girl as a Solomonic tussle between the biological father of Baby Veronica and her adoptive parents. Both sides possess strong claims to parental rights, and the only thing to do is think deeply about what is in the best interest of the child, and resolve the case accordingly. That is not how I read the opinion. When a statute is as ambiguous as this one is, and the court breaks down along ideological lines (as the court nearly does—with Scalia and Breyer switching places, as is becoming increasingly common), a good place to start is with the ideological underpinnings of the case. Appearances to the contrary, the case is not about the relative interests of biological parents versus adoptive parents—an issue which has little ideological valence these days. It is about race and racial classifications.

The issue in this case is whether a biological Indian father must have had custody of his child in order to have the right to stop the biological mother from putting the child up for adoption with a non-Indian family. The majority said yes, ruling against the father. Justice Alito argued that if the father did not have custody, then maybe he has not made a significant investment in the child, and thus the adoption may seem to be presumptively in the best interest of the child, despite our usual assumption that children should normally stay with their biological parents.

But the statute in question, The Indian Child Welfare Act, was enacted in 1978 by a Democratic Congress and president to preserve the integrity of Indian tribes. Congress passed the statute specifically to keep intact Indian tribes that were losing members as children were adopted by non-Indian couples. The statute thus grants a special right to Indian parents that non-Indian parents (in many states, including South Carolina, where the events took place) lack. The statute directs courts not to act in the best interests of the child when they conflict with legitimate tribal interests.